JOINT BOARD OF COMMISSIONERS'/
ELECTED OFFICIALS’ MEETING
November 1, 2006
7:00 p.m.
Harris Hall Main Floor
APPROVED 11/29/06
Commissioner Bill Dwyer presided with Commissioners Bobby Green, Sr., Anna Morrison, Peter Sorenson and Faye Stewart present. Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.
Mayor Kitty Piercy presided for the meeting of the Eugene City Council with Councilors Bonny Bettman, David Kelly, Andrea Ortiz, Gary Pape, George Poling, Chris Pryor, Jennifer Solomon and Betty Taylor present.
13. PUBLIC
HEARING
a. SECOND READING
AND JOINT PUBLIC HEARING WITH CITY OF EUGENE/Ordinance No. PA 1238/In
the Matter of Amending the Eugene/Springfield Metropolitan Area General Plan
(Metro Plan) to Revise the Goal 5 Significant Mineral and Aggregate Resources
Inventory, Redesignate From “Agriculture” to “Sand & Gravel”; Rezone From
“E30/Exclusive Farm Use Zone” to “SG/Sand, Gravel & Rock Products Zone” and
Allow Mining on 72.31 Acres of Land Pursuant to the Goal 5 Oregon
Administrative Rules (OAR 660-023); and Adopting Savings and Severability
Clauses (File Pa 05-6151; Delta Property Co.) (NBA & PM 10/18/06).
Dwyer stated the
purpose of the meeting is to consider and provide an opportunity for all
parties to comment on the request for a Metro Plan amendment that affects 72.3
acres of land and would change the plan designation from agriculture to sand
and gravel and rezone that land from exclusive farm use to sand and gravel and
rock products for future mining of the expansion area. He said because this application is for
property that is located within the Eugene Springfield Metro Plan boundary,
both the Eugene City Council and the Lane County Board of Commissioners are
required to take action on the proposal.
He added because this application involves both a Metro Plan amendment
and a rezoning, the de novo hearing procedures for the rezoning would be used
to allow new testimony and evidence on the entire application. He stated that all persons wanting to speak
on the matter should sign up tonight to ensure their place in testimony. He indicated that the sign up sheets would
not be available at future meetings for additional people to sign up. He noted that written testimony or evidence
might be submitted until the record is closed.
Dwyer asked if any
of the Lane County Board of Commissioners or Eugene City Council had any ex
parte contacts.
Pape reported that
he attended neighborhood meetings in the Santa Clara community. He recalled there were discussions but none
that were substantive. He spoke with
Mike Alltucker, President of Eugene Sand and Gravel, and Alltucker asked if he
was going to be at this meeting. Pape
indicated he couldn’t discuss any substantive issues with Alltucker.
Sorenson announced
that in conjunction with some political matters, he had a meeting with Kay
Toolson. Toolson wanted Sorenson to
know that Delta was a good employer in the community.
Dwyer received
e-mails and letters from employees who might be affected by the change. He received a letter from Kay Toolson of
Monaco but he said none of the letters or e-mails would affect his decision.
Mayor Piercy noted
that the city councilors received a lot of e-mails and communications and they
passed those on to be put into the record without taking them into
consideration. She said they were
letting people know that was what they were doing.
Dwyer asked if
anyone wanted to respond to the ex parte disclosures or challenge any board
member or city councilor hearing this matter due to bias or a conflict of
interest.
Doug DuPriest,
Attorney, stated he represented Joel and Terese Narvo. He raised a point of order about how the
hearing was conducted. DuPriest
indicated that the city council and board would intend to take evidence. He asked to address that issue for five
minutes. He said it affects whether
they are supposed to take evidence at this hearing. He thought this was an appropriate time to discuss the
issue. He informed Kent Howe, Land
Management, prior to the hearing, that he intended to ask for this.
Dwyer thought the
appropriate time would be after Howe and Vorhes give their comments.
Dwyer opened the
meeting for the Lane County Board of Commissioners.
Mayor Piercy opened
the meeting for the Eugene City Council.
Kent Howe, Land
Management, explained there is substantial and significant difference in this
type of an application than what most applications are in the County or the
Eugene City Council reviews. He said
this was not an application that would be used to site an industrial use in an
area that has residential areas around it.
He stated it was a rigorous application of Oregon Administrative Rule
requirements regarding a non-renewable resource. He indicated that it is a post acknowledgement plan amendment process
governed by an administrative rule for mineral and aggregate. He noted in this situation they have a
non-renewable resource: sand and gravel and there is a process to determine
whether it is significant or not. He
said if it is significant, the same type of application of the state protection
measures go into play to protect the site and to allow the extraction of the
resource.
Howe indicated the
process under the Goal 5 Rule is a six-step process. He noted the first step constitutes a completeness check for a
post acknowledgement plan amendment. He
said they had done that and they have a complete application. He indicated that Step 2 is to determine if
the resource site is significant. He
stated in determining the significance of the resource site, an aggregate site
is considered significant if adequate information regarding the quantity and
quality and location of the site demonstrates that it meets any one of the
following criteria: whether the rock
meets the ODOT specifications for base rock and the estimated amount of
material is more than 2 million tons. He added not more than 35 percent of the
proposed mining area could consist of Class 1 and 2 soils unless the average
width of the aggregate layer within the mining area exceeds 60 feet.
Howe explained that
after they determine whether it is a significant site or not, they determine if
the conflicts from mining could be minimized.
He indicated the impact area must be defined and the impact area is limited
to 1500 feet from the boundaries of the mining area except where factual
information indicates substantial conflicts beyond this distance. He added that existing uses within the
impact area must be identified. He said
potential conflicts from the proposed mining on the existing uses must be
identified. He said the potential
conflicts must be evaluated to determine whether they could be minimized. He stated if it is determined that there are
no conflicts, or that conflicts could be minimized, then mining shall be
allowed at the site and then proceed to Step 5. He said if it is determined that there are conflicts that could
not be minimized, they would proceed to Step 4.
Howe noted that Step
4 weighs the ESEE consequences if the conflicts have not been minimized. He said that would be up to the elected
officials whether the facts in the application are demonstrating that the
conflicts that have been identified have been minimized or not.
Howe stated Step 5
is the step where the ESEE consequences are analyzed on the potential new conflicting
uses within the impact area. He said if a site is determined to be significant
and the conflicts are minimized, in Step 5 they look at the surrounding uses
that could happen in the future that might impact the sand and aggregate site. He said through the ESEE evaluation of those
potential impacts from surrounding uses, it will have to be determined whether
to prohibit, limit or outright permit those conflicting uses.
Howe said Step 6 is
developing a program to allow the mining.
He indicated that once the elected officials have decided whether it is
appropriate to add this site to the inventory in the Metro Plan for sand and
gravel designation, then the Board of Commissioners only will determine the
rezoning conformity with the Lane County Sand and Gravel Rocks Product
Zone. He said that is how the rule will
be implemented that will allow the extraction of the aggregate at the site
consistent with the statewide goals and the Lane County and Metro Plan requirements.
Stephanie Schulz,
Land Management, reported that the subject property is 72.31 acres located
within the Eugene Springfield Metropolitan Plan Boundary outside the Eugene
Urban Growth Boundary, north of Beltline Road, west of the Willamette River, in
Township 17, Range 4, and Section 12.
She noted the criteria for a post acknowledgment plan amendment is found
on page 4 and 5 of the staff report. (Copy in file). She said the proposal must be found to be consistent with
statewide planning goals and must keep the Metro Plan internally consistent and
it must address the Goal 5 Mineral and Aggregate Rule for expanding an existing
site.
Schulz explained
that the record in this matter would consist of the application and any
supporting information, staff reports and supporting documents. She added that
any material now listed in the staff’s application file is being included in
the record. She said that testimony and evidence offered at the hearing must be
directed toward the criteria listed in the notice or to other criteria in the
plan or land use regulations that the person believes applied to a decision on
the application. She noted that
evidence admissible at this hearing would be that which is commonly relied upon
by persons of reasonable prudence conducting their own affairs. She said the burden of proof in this matter
with regard to each particular factor position lies with the person who is
proposing the position. She said the
general burden to support the application lies with the applicant and the
hearing is being recorded on tape.
Schulz reported that
the Lane County and City of Eugene Planning Commissions conducted a public
hearing over two nights: November 15, 2005 and January 17, 2006. She noted the record remained open for the
submittal of additional materials until March 31, 2006. She added in joint public meetings held on
July 25 and August 30, 2006, the planning commissions deliberated on the
application and testimony to come to their recommendation. She stated that both planning commissions
are recommending denial for the reasons set forth under each step of the Goal 5
analysis process described in the staff memo to the ordinance and in the
meeting minutes that are attached to the packet.
Schulz noted in Step
1 adequacy of the information (page 6 of the staff report), the Lane County
Planning Commission voted 4-2 and the Eugene Planning Commission found
unanimously that there was adequate information submitted in the PAPA
application.
With Step 2,
significance of the resources, (page 7 and 8 of the staff report) Schulz noted
the determination of significance was tested on two criteria: quantity and
quality. She said both planning
commissions agreed there was sufficient quantity to meet the significance
criteria. She noted the Lane County
Planning Commission voted 4-2 that the sampling method for the quality analysis
of the aggregate was inadequate to fully determine whether the resource met the
second criteria. She noted the Eugene
Planning Commission voted 3-2 that the applicant demonstrated there is a
significant mineral and aggregate resource at the site under both quality and
quantity criteria.
With Step 3,
minimizing conflicts (page 8 of the staff report) Schulz said on the extent of
the impacts and identified conflicts (pages 8 to 12 of the staff report), the
planning commissions considered each conflict type, reviewing the extent of
impact and the proposed minimization conditions for each conflict identified
under Goal 5. She noted that Exhibit C
to the ordinance has the conditions proposed for inclusion in the plan to allow
mining (if approved) that would ensure conformance with applicable local state
or federal standards. She said that
both planning commissions found that none of the conflicts extend beyond the 1,500-foot
minimum impact area as measured from the perimeter of the expansion site. She indicated that both planning commissions
found there were conflicts with noise, dust, groundwater, wetlands and
sensitive habitat and agricultural practices.
She stated the Lane County Planning Commission additionally identified a
conflict with flooding.
Schulz explained
that under the minimization of each of the identified conflicts, noise is
addressed by the DEQ (page 12 of the staff report) noise regulations of OAR
340-35-035. She noted that both planning
commissions found unanimously that there is a conflict due to noise and that
the noise conflict could be minimized to a level that meets the state DEQ
standard. She reported the Lane County
Planning Commission vote was 3-2 with one abstention and the Eugene Planning
Commission voted 3-2.
With regard to dust
conflicts (page 12 and 13 of the staff report); Schulz indicated they are
addressed by DEQ emission standards applied by the Lane Regional Air Pollution
Authority through their air contaminant discharge permit. She said both of the planning commissions
found unanimously that there is conflict due to dust that could not be
minimized to a level that meets the DEQ admission standards applied by LRAPA. She noted the Lane County Planning
Commission’s vote was 3-2 with one abstention and the Eugene Planning
Commission voted 3-2.
Schulz noted on page
13 of the staff report with regard to flooding conflicts, the Lane County flood
hazard requirements are found in Lane Code Section 16.244, the Floodplain Combining
Zone. She indicated the Lane County Planning Commission voted 5-1 that there
was a conflict due to flooding and they voted 4-2 that the conflict could not
be minimized to meet the FEMA standard.
She noted the Eugene Planning Commission voted 3-2 that there was not a
conflict due to flooding.
With regard to the
wetlands conflict, (page 13 of the staff report) Schulz indicated the wetlands
protection criteria is generally addressed by a Division of State Lands fill
removal permit requirement of OAR 141-85.
She reported that conflicts are likely to be minimized by demonstrating
conformance with the DSL requirements.
She indicated that both planning commissions found a conflict to
wetlands and Lane County’s vote was 4-2 and Eugene’s was 3-2. She noted the Lane County Planning
Commission voted 2-4 that impacts to wetlands could not be minimized. She said the Eugene Planning Commission
voted unanimously that conflicts with wetlands could be fully minimized.
With regard to
groundwater conflicts (page 14 of the staff report) Schulz indicated they are
not addressed by any local, state or federal standards when developing a
program to allow mining. She added that
coordination occurs between the Department of Oregon Geology and Mineral
Industry (DOGAMI) as part of the interjurisdictional review in concurrence with
the Oregon Water Resources Department. She added that the Mining Plan requires
DOGAMI approval. She said the applicant
proposes to minimize the conflict with neighboring wells by completing a below
grade low permeability barrier (also called an aquaclude) along the edge of the
expansion area to impede the flow of groundwater into the pit that would be
created by excavation of the site. She
stated that both planning commissions found unanimously that there was a
conflict due to groundwater. She added
the low permeability barrier is proposed as mitigation and the applicant should
map this specific proposed location for the low permeability barrier. She said the Lane County Planning Commission
voted 4-2 that the aquaclude would not minimize the conflict with groundwater
to an adequate level. She noted the
Eugene Planning Commission found unanimously that the aquaclude would minimize
conflicts with groundwater to an adequate level.
For agricultural
conflicts, (page 15 of the staff report) Schulz reported that minimization of
conflicts with agriculture practices must be reviewed under the provisions of
Oregon Revised Statutes number 215.296(1) to determine that the use will not
either force a significant change in accepted farm or forest practices on
surrounding lands devoted to farm or forest use or significantly increase the
cost of accepted farm or forest practices on surrounding lands. She noted that both planning commissions
found that there was a conflict with agricultural practices. She stated the Lane County Planning
Commission vote was 4-2 and the Eugene Planning Commission was 3-2. She said
the Eugene Planning Commission voted unanimously that the conflicts with agriculture
practices could be minimized to a level that does not force a significant
change in accepted farm use nor increase the cost to conduct farming
significantly. She noted the Lane
County Planning Commission voted 4-2 that the conflicts with agricultural practices
could not be minimized to a level that does not force a significant change.
With regard to
weighing the ESEE analysis, Schulz reported the joint planning commissions
found adverse affects within the impact area.
She said they agreed that conflict due to dust was one conflict that
could not be reduced below a significant level. She stated in addition to dust, the Lane County Planning
Commission found that conflicts could not be minimized for groundwater,
wetlands and flooding. She said
depending upon the evidence provided in this proceeding with the elected
officials, they would need to determine whether or not these impacts have been
minimized. She said if they had not,
they might request that the applicant prepare an ESEE analysis in accordance
with this section of the rule.
Schulz said Step 5
is determining the consequences of new uses.
She noted no potential new uses were identified in the impact area by
the planning commissions. She said the
site is adjacent to existing sand and gravel extraction and developed
residential and agricultural zone property.
She reported they found there was no need for an ESEE analysis of
potential new uses.
With regard to Step
6 of the plan to allow mining, (page 16 to 20 of the staff report) Schulz said
the Delta expansion site is outside of the metro urban growth boundary and Lane
Code Chapter 16 zoning applies. She
explained the rezoning decision and the variance to Lane Code provisions falls
to the Lane County Board of Commissioners for decision. She indicated that the complete
recommendations are on page 22 of the staff report.
Kelly noted that at
each of their seats was a packet of material from various people. He asked why
it was placed there and what it was.
Howe responded that
the applicant placed those at their seats before the meeting started.
Schulz distributed
the materials that had come into the public record.
Mayor Piercy opened
the Public Hearing for the Eugene City Council.
Commissioner Dwyer
opened the Public Hearing for the Lane County Board of Commissioners.
DuPriest asked if he
could raise a procedural objection.
Vorhes reported this
related to the steps that were described.
He noted what would be done here through the Goal 5 mineral and
aggregate rule gets to a decision on whether to allow mining. He added the program that will implement
that rule is through the rezoning decision that the Board of Commissioners will
make. He said the analysis of the Goal
5 Rule drives these bodies to speak to the rezoning and that is a de novo process
that is driving this proceeding.
DuPriest commented
that this is an elaborate Goal 5 process and it is more complicated because of
the two jurisdictions. He noted in the
Metro Plan there are provisions to discuss what happens on Metro Plan amendments
and the need to hold joint hearings. He
reviewed the Metro Plan and the Eugene Code to figure out the appropriate
process. He said the City of Eugene and
Lane County have two kinds of decisions to be made, a Comprehensive Plan
amendment and a zone change. He noted
the Eugene Code said the governing body’s decisions shall be based solely on
the evidentiary record created before the planning commissions, no new evidence
shall be allowed at the governing body joint hearing. He understood this was a governing body joint hearing on the
Comprehensive Plan amendment. He
reviewed Lane Code and it had the identical provision. He said the plan amendment is to be based
solely on the evidentiary record created before the planning commissions and no
new evidence allowed at the governing body joint hearing. He raised this issue by letter to Lane
County and the response was they believed evidence was allowed on the zoning
side. He thought there was an easy way
to solve any conflict between the planning and zoning process, to deal with the
plan amendment first and if the plan amendment is approved, they could open the
hearing up for new evidence and decide on the zoning. He didn’t think the record would be closed or a decision made
tonight. His request to the Eugene City
Council and the Board of Commissioners is to take each of the processes in
turn: the plan amendment first, then
use the procedure set for the plan amendment and when they get to the zone
change, do the procedure for the zone change.
DuPriest said he
found in Lane Code Chapter 14 a section that says where a zone change is
combined with a plan amendment, to follow the procedures of Chapter 12 and 14
for a plan amendment. He said that
Chapter 12 says no new evidence is allowed at the governing body joint
hearing. He said on the Lane County
side there is not supposed to be any new evidence at the Comprehensive Plan
amendment joint hearing, but it seemed to him that no new evidence had come in
on the zoning. With regard to the city
zone change, he crossed it out based on what he heard planning director Howe
say in his introductory remarks, that if the plan amendments are approved
jointly, the Metro Plan is changed to allow the use, then the County
regulations apply and it will be Lane County doing the zoning and they don’t
have to look at the city code provision on how the zoning is to be done, as it
is a Lane County function. He said the
procedure in the Eugene Code for rezoning and whether they take evidence or not
is irrelevant. His request is to treat
the plan amendment as an on the record hearing and when Lane County does
zoning, then counsel could advise on whether there is new evidence to be
brought in.
Vorhes explained
what were not pointed out were the portions of Lane Code Chapter 14 that
provide for a de novo hearing on the rezoning.
He said the Goal 5 Mineral and Aggregate Rule and the process that
governs it supercedes the Metro Plan and the rezoning process. He noted the combination of steps that are
included in the Goal 5 Mineral and Aggregate Rule includes developing a program
to allow mining and there is a role that the city council and the Board play in
the development of the mining program, through the resolution of conflicts and
analysis. He thought they were
intertwined and it made sense to hold the hearings together, take new evidence,
let everyone respond and provide whatever evidence they think is relevant to
the application and proceed in that fashion.
He stated that ultimately it is a decision for each body to make.
Dwyer indicated the
Board had made a decision and if they were going to err, they would err on
openness and inclusion and not by bifurcating the procedures.
Kurt Yeiter, Eugene
Planning, said he had contacted Emily Jerome, Attorney, and she had a
conference with Vorhes and sent him an e-mail that they concurred on with the
analysis. She recommended that the new evidence be allowed.
Kelly asked if Step
3 and Step 5 in determining a conflict was relevant to the plan amendment but
not the zone change.
Vorhes said it was
relevant to the plan amendment. He
noted out of that analysis might come conditions or limitations on the
operation that will be implemented in the zone change decision. He thought that was why they were
intertwined.
Kelly asked if the
zone change decisions were made entirely by the Board of Commissioners. He said if the Eugene City Council is
intertwining themselves with a procedural error, then they don’t need to be
involved since they are not going to be discussing the zone change.
Vorhes said what
they discuss with conflict resolution contributes to the program to allow
mining under the Goal 5 rule. He added to get to the decision on the plan
amendment, that piece will assist the Board in their decision on what the
rezoning should look like. He commented that they were intertwined and he
didn’t know how to separate then.
Kelly said they
could hold a deliberation on the plan amendment with the evidence on the
record. He didn’t want to get into
trouble.
Kelly said there is
a section of Lane Code Section 14 that says they could do a de novo on a zone
change. He asked if there is a
preemption documented in a piece of state law that a layperson could
understand.
Vorhes responded the
state law is the administrative rule that carefully crafts a process and limits
consideration of the decision maker to those considerations in the rule. He said the only conflicts they could look
at is the one listed in the Goal 5 rule and that is the heart of the
matter. He noted with regard to the case
law, that LUBA and Court of appeals told Lane County they could not apply their
usual Rural Comp Plan amendment criteria and zoning criteria to deny or approve
mining. He stated the only thing that
could be applied in terms of substantive criteria were the requirements of the
Goal 5 mineral and aggregate rule.
Kelly asked if the
LUBA rule addressed the issue of testimony and evidence.
Vorhes indicated
that it was not a process issue at that point; it was a substantive issue of
applicable criteria. He said the process issue was not presented to the Board
because they were doing a plan and zone change under Chapter 14 that is de
novo. He said both the council and the
board are faced with the same question on the Metro Plan amendment piece of the
action and the codes say it is on the record.
He said both the council and the board have the authority to say
notwithstanding that code provision they will take evidence as long as they
provide adequate notice and opportunity for people to present their testimony
and evidence. He said if a debate is
raised at LUBA or the Court of Appeals around the process that is used, the
debate would be, if there were an error, how any substantial rights of the
parties were prejudiced. He said if
adequate notice is provided of what the intention is and accepting the evidence
and giving everyone time to respond, he was confident that a procedural error
(if there is one that is raised) is not going to be a basis for remanding this.
Bettman said it
would be easier since the council doesn’t weigh in on the zone change for them
to just consider the discreet criteria in the Metro Plan amendment. She heard that Chapter 14 allows for the
zone change piece to have a de novo hearing.
She asked if the hearing would be limited to new evidence strictly on
the zone change and not on the plan amendment.
Vorhes cautioned
about the difficulty of separating the evidence they hear on the zone change,
making it clear that is not something they are going to consider. He said that was a question about separating
the processes or leaving them together.
Bettman asked, if
they wanted to follow the letter of the law and not consider new evidence at
the hearing, or if they wanted to separate out the hearings so the Eugene City
Council was only involved in the plan amendment hearing, what the procedure
would be.
Yeiter responded
that to separate the zone change is more of a Lane County question. He noted that separate hearings would have
to be set up after the Metro Plan amendment questions. He thought on subsequent hearings just on
the Metro Plan the County only would deal with zone changes. He indicated what had come up in a memo from
Emily Jerome, Attorney, waived the risk of different actions. He noted that one of the things she brought up
was the practical issue of separating any evidence that is present and what is
related to zoning or if there is discussion about previous testimony, was it
entered before or could it be for new testimony. He said because they are in a joint decision process, the codes
don’t match. He added there would be
risk if they tried excluding the new testimony. His counsel thought on balance there would be less risk in
accepting the new testimony and allow the hearing to be open.
Bettman thought it
would be impractical to separate the hearings but she thought it would be
simple to move that they not accept new evidence at the hearing. She asked if the city council did that if
the County had to do the same.
Vorhes said there
could be a board decision point on the same issue that might come down
differently.
Bettman commented
that for her the letter of the law was important by following the procedures
that are set out in code. She didn’t
hear a compelling argument to supersede those procedures. She wanted to move that they not accept new
evidence for the plan amendment.
Pape stated the
issue for him was discerning what evidence they should exclude if it was
relevant to the zone change and not relevant to the Metro Plan amendment. He thought it could prejudice their thoughts
on the Metro Plan.
Pryor said in
looking at the City of Eugene’s proposed ordinance on the Metro Plan under
Section 2, that what the city council would want to hear and have as evidence
in order to consider an amendment for redesignation of specific lots is talking
about rezoning the exact same lots. He
said it would be the same kind of evidence.
He didn’t think there was anything he did not want to hear regarding the
information on the redesignation and he thought the Metro Plan amendment and
the redesignation would be a precedent for what they would want to consider in
a zone change. Regarding whether
evidence should be admitted now versus working de novo, he wanted to know what
others said on the issue.
Green didn’t think
he could make a prudent decision unless he had all of the information. He said since the burden of proof is on the
applicant, they may have other information.
He was interested in hearing what they had to say and whatever
information everyone needs to make the decision needed to be on the record.
Steve Cornacchia,
Eugene, represented the applicants. He
said the Administrative Rules make it clear that if the County and the City of
Eugene have not adopted regulations that mirror the Goal 5 rules and regulations,
then all of those considerations of the County and the city for rezones and
plan amendments are pre-empted by that rule.
He noted there was a case that had gone to the Court of Appeals that is
in the record that reflects the pre-emption of the statewide rules. He commented that plan amendments and zone
changes must have a demonstration that they are consistent with statewide
planning goals. He indicated in this
case the only time they didn’t do that is when they don’t have an acknowledged
plan. He said the pre-emption states
their rules don’t apply, Goal 5 Rules do.
He stated they end up in the same situation where they have a rezone and
a plan amendment requiring consistency with the planning goals. He noted the planning goals are implemented
by the administrative rules. He said in
this case Goal 5 is implemented by the administrative rules. He asked how they could say they were not
going to take new evidence and allow anyone to testify. He commented that whenever anyone comes up
to speak, it is characterized as new evidence.
He said if they could submit new materials that he would enter into the
record that there was prejudice to the applicant. He indicated the prejudice comes from the planning
department. He recalled that last week
the lawyers met to discuss this issue and both jurisdictions agreed to hold
this hearing in this manner. He
indicated that was relayed to him and as they prepared for the hearing, they
did it on the basis there would be an open hearing of new evidence. He said if they would have known the elected
officials would have agreed otherwise, they would have made a different
presentation. He commented if the City
of Eugene is concerned about procedural error and the negative impact on a
party, then by following the suggestion of DuPriest, they will significantly
negatively impact and prejudice the applicant.
Cornacchia recalled
when he was a commissioner they had never varied from a full evidentiary
hearing and the community prides itself on being inclusive and allowing people
to participate. He asked why people
shouldn’t be included and why the issue was being raised. He thought the elected officials would want
to base their decision on as much information as possible from both sides and
to limit that information is prejudicial.
Bettman commented it
is inconsistent with both the Eugene Code and the Lane County Code. She indicated the hearing is based on the
evidentiary record that was considered by the planning commissions. She said anyone who speaks is speaking to
that record and that is the evidence and testimony they are supposed to
consider according to the existing Eugene Code and the Lane Code. With regard to the staff’s meeting and
deciding that this is the way the hearing was going to go, she stated they asked
their staff that very question and she received an e-mail from staff that
stated the first decision by the elected bodies would be whether they would
want to open up the hearing to accept new evidence if any is offered at the
hearing. She came to the meeting
expecting to consider this question and vote whether they would be accepting
new evidence or considering testimony on the existing record.
MOTION: to
consider only testimony on the record that was offered to the Lane County and
Eugene Planning Commissions.
Bettman MOVED, Kelly
SECONDED.
Kelly asked Bettman
to specifically cite Eugene Code 97740(4) as the reason to move the motion.
Bettman accepted the
amendment.
Bettman commented
that to her it was immaterial either way except they do have code language that
limits testimony to the record in front of them. She didn’t know what the criteria for a zone change in Lane
County would be because it is not a decision the city council would be involved
in. She indicated the plan amendment
criteria is strictly that the amendment be consistent with relevant statewide
planning goals and that it not make the Metro Plan internally inconsistent and
that is the criteria she uses to evaluate the testimony.
Kelly stated he
thought they were set up because they didn’t have their legal counsel present
and they couldn’t ask for advice. He
noted that Cornacchia indicated staff and the attorneys met last week and
decided this was what they would do but that wasn’t shared with the city
council. He recalled there was an
e-mail from staff earlier in the week in response to a question he raised about
what is a de novo hearing versus a hearing on the record that said it would be
a decision they would make tonight. He
said it had nothing to do with the issue of being inclusive or listening to
everyone, he was trying to read what it claims is in the city’s Municipal Code
which is in the case of a plan amendment.
He indicated it stated: “The governing body’s decision shall be based
solely on the evidentiary record created before the planning commissions, no
new evidence shall be allowed at the governing body joint hearing.” He didn’t have the benefit of the court case
Cornacchia referred to and he didn’t have the benefit of their legal counsel
present. He asked Yeiter to compare a
Goal 5 aggregate hearing versus a regular plan amendment.
Yeiter responded
that this was his first Goal 5 amendment hearing and in his ten years with the
city he had not seen a Metro Plan amendment held without allowing new evidence
at the hearing at the elected official level.
He noted with the advice that both counsels provided, there is a
difference for Metro Plan amendments that are city initiated. He noted that one of the issues raised by
the applicant with regard to Goal 5 pre-empting local law was not part of the
written correspondence he received from his counsel.
Mayor Piercy said
when they had the planning meeting, the issue was brought up and they had the
advice from their legal counsel that this was the best way to handle the
situation. She understood from the
legal opinion that that was a direction that was considered to be best.
Pape commented the
key issue for him is that he heard clearly the statutes and administrative
rules for Goal 5 pre-empt what they may have in their codes with regard to
criteria. He asked if there was a
procedure associated with aggregates in the codes and if it pre-empted their
procedure.
Vorhes said the
procedural rules are not set out in the goal or administrative rule, they are
the substantive criteria. He said when
they get to the city or county code on criteria for approval of a Metro Plan
amendment, internal consistency goes away because of the pre-emption cases. He noted one case involved Eugene Sand and
Gravel and the other the applicant noted is Morse Bros. v. Columbia County. He said those cases say the Goal 5 Rule on
mineral and aggregate is the process and the substance for making
determinations. He said they have to go
through the steps and they can’t apply other Comprehensive Plan criteria or
standards to the decision. He indicated
those cases don’t deal with the process issue.
Ortiz believed in
people coming forward at a hearing but she wanted to stay within the law.
Bettman said if
their legal counsel took formal position on the issue of process that they
should have been apprised of it. She
read the city council packet and the information provided by Lane County staff
and it talks about the Metro Plan amendment criteria. She didn’t see the fact that Goal 5 supersedes the typical Metro
Plan amendment criteria in which they are required to consider. She said that counsel needs to be on record
on whether or not they would accept new evidence.
VOTE: 2-6 MOTION FAILED (Taylor and Bettman voted
in favor).
Kelly indicated he
voted no because he didn’t have a legal advisor present and he thought they
would waste time and this would show up on appeal.
Dwyer recalled they
had the discussion today at the Board meeting and he brought it up. He said the Board agreed to the rules. He said the Board concurred they made the
right decision.
Bob Bricklund, Oregon Department of Geology, said their
presence was requested by Lane County by the Board of Commissioners. He indicated they submitted information into
the record that had been provided to everyone.
Bob Houston, Oregon Department of Geology, stated he
wrote the quantity issue.
Bettman asked for
Houston to define overburden.
Houston responded it
is material that overlies the resource. He said it could be large rocks or clay
deposits.
Bettman asked
without the additional acreage how long the entity would be able to continue
producing the same amount of product.
Houston noted that
is based off of market forces in the community.
Morrison wanted
Houston to summarize his letter that was submitted to staff.
Houston recalled the
letter submitted to staff explains the environment typical for the area where a
meandering river deposits gravel in high and low flow regimes, what it looks
like, how lateral the aggregate is and how consistent that is within the basin
and the other excavations that are proximal to those locations. He came up with a bank volume calculation on
what is in the proposed extraction site of 53 acres. He noted there is a difference in the total amount of tonnage in
his estimation than the consultants. He
indicated that had to do with the conversion factor from cubic yards to
tons. He said the conversion factor
they used at the department is 2.6 times per cubic yard. He noted the conversion factor used by the
consultant was 1.8 and that depends on what type of rock was weighed. He indicated the 2.6 was given to them by
Delta Sand and Gravel and that is what they used to estimate tonnage. He said the total volume is around 7 million
and the total tonnage is about 15 million tons.
Emily Jerome,
Counsel for the City of Eugene, explained there are three issues collectively
before the elected officials. She said
both jurisdictions are being asked to amend the Goal 5 inventory that is
similar to amending the Metro Plan. She
explained that amending the Metro Plan is subject to the same process as if
they were doing a text amendment to the Metro Plan. Jerome noted the second action the elected officials are asked to
take is amending the Metro Plan diagram.
She added the third action is for the County only to do a zone
change. She indicated the first two
actions are subject to a process that is governed by the Metro Plan itself and
it is the same process for both jurisdictions.
She said they are instructed to accept no new evidence and those
decisions are to be made on the record that has been prepared before the
planning commission. She understood the
County’s decision on the zone change in talking with Vorhes is the code with
the County is clear that new evidence is to be taken and considered.
Jerome explained
this had come to the elected officials as a consolidated proceeding. She said that all three questions had been
looked at as one proceeding for the planning commission, with one staff report
and a recommendation that applies to all of it. She said it complicates things as the city council has two
different types of processes to be dealt with.
She indicated in talking with Vorhes about the best approach, there are
a couple of options. She said if it
stays as a consolidated process as it has been brought, they have a decision
point. She said there is a good
argument that to accept new evidence on the whole package could be perceived by
LUBA as a procedural or process error in accepting new evidence where the code
says they wouldn’t be accepting new evidence on the Metro Plan amendments. She stated if they don’t accept new evidence
at all, there is a clear violation in the zone change process for the
County. She said they could try to accept
new evidence but only consider the new evidence with respect to the zone change
and they could try to sort out the record and pull out the new evidence and
specifically reject that on the record.
Jerome said to
remedy any procedural error by accepting new evidence at the local level they
could do a number of things to remedy that procedural error. She said they do that by providing a full
quasi-judicial process. She said that
would be following the rules about leaving the record open if someone requests
it and allowing the applicant seven additional days for rebuttal. She said that remedies a procedural error
and they are confident that if all of those procedures are followed, if they
choose to accept new evidence, they could defend that action at LUBA. She didn’t think it would be simple to
defend a procedure where they pick and choose new evidence from new testimony
and divide it that way. She said that
is why Vorhes advised the County that in this consolidated process it would be
best to accept evidence on the whole package. She said if the city council
wanted to disregard the new evidence they heard and accept only testimony on
the record from hereon out, her recommendation would be to divide the matter
and don’t try to do it in one hearing.
Pape asked why the
city council was in this hearing.
Jerome responded
that the city council is required under the Metro Plan provision to make a
decision with regard to the Metro Plan amendments. She said they need to have a hearing to accept new testimony on
the record and argument on what had already been in the record and allow people
to address that.
Bettman asked what
the justification was around the original decision to have the consolidated
process. She thought it was
inconsistent with their code and they had to make the accommodations in order
to carry it forward and consolidate it.
She thought if they would have just gone with the council participating
in the Metro Plan amendment and the County doing the zone change instead of
consolidating it, it would have been simpler and consistent with their
code. She commented that this choice
has put them in a compromised position of trying to accommodate a situation
that is inconsistent with their own.
She asked if the County made the decision because it was more
convenient.
Vorhes said that had
been the way it was approached at the planning commission. He noted it was consolidated there and it
wasn’t a problem because they could take new evidence. He said in terms of coming to the elected
officials, he said it was a function of economy. He stated that both the Board and the council need to address the
Goal 5 Rule on the decision and it affects the rezoning decision even though
there is talk about it as simply a Metro Plan amendment. He indicated to add this to the inventory
and to change the designation if the consensus of the elected officials is to
approve the application and allow mining.
He said what is done in the Goal 5 Rule steps has implications for the
rezoning decision. He said separating
them is not as simple a process.
Bettman indicated
she didn’t see any information in any packet superseding the Metro Plan
process. She said there are issues in
the zoning change under the Goal 5 criteria that are applicable to the Metro
Plan amendment and therefore County Counsel believes that the city council
should be privy to those conversations.
Jerome thought it
was more of a hierarchical issue. She
said they couldn’t change the zoning unless it is consistent with the Metro
Plan. She said in this case the Metro
Plan designation they are being asked to apply is directly related to a Goal 5
resource. She wasn’t familiar with the
County’s aggregate zoning but it is related to the Goal 5 issue. She added if in fact it is to be considered a
Goal 5 site eligible for mining and fitting under the Goal 5 rules, then it is
appropriate to apply the designation and apply the zoning. She said it made sense to consolidate the
process up to this moment in time. She
said it becomes an issue because the council and the Board had regularly
accepted new evidence in their joint hearings.
She thought they could remedy any legal problems and once they make that
decision they will make sure it will be a defensible decision.
Kelly recalled there
was a motion made earlier by Bettman that was voted down. He noted that vote took place without legal
advice. He recalled in the past the
joint elected officials took new evidence on plan amendments as opposed to
taking testimony on the record. He
asked how the joint elected officials took new evidence and complied with
Eugene Code 97740 that says the decision must be based solely on the
evidentiary record created before the planning commissions that no new evidence
shall be allowed at the governing body joint hearing.
Jerome recalled they
were city or county initiated amendments.
She said there is a provision in the Metro Plan process that allows them
to have the procedure they prefer when it is a city initiated plan amendment and
the procedures that staff recalled where they accepted new evidence at the
council level were city initiated.
Kelly indicated that
some people had noted that state procedures around Goal 5 aggregate trump the
whole body of their local code and criteria they apply to plan amendments and
the applicant in their application cited a Morse Bros. v Columbia County
case. He asked if that case had any
bearing on whether or not they could accept new evidence.
Jerome said in the
process of the hearing she would have an opportunity to sort that out, as she
doesn’t have familiarity with it because they don’t deal in the urban areas as
city government with sand and gravel aggregate issues that often. With regard to the Goal 5 process, she said
the question they would look at is whether or not this site is appropriate
under the Goal 5 Rules. She noted if
they don’t’ get past that then they are done.
Kelly asked if the
council could choose to bifurcate this hearing and take testimony only on the
existing record since the Metro Plan amendment is all the city council has to
decide on.
Jerome commented
that it was a matter of economy. She
said they could make the choice and ask people to come to two hearings for them
to provide only testimony with respect to the first hearing on the Metro Plan issues. She said they could sort out the testimony
and argument on the record and evidence with respect to the zone change hearing
that would happen at another time. She
noted the commissioners would have the difficult task of organizing which
hearing submittals they could consider for one proceeding and block out the new
evidence they received at the other.
Kelly asked if the
decision on the plan amendment could be made before they had a hearing on the
zone change.
MOTION: to have a hearing first solely on the plan
amendment and they will take testimony on the existing record.
Kelly MOVED, Bettman
SECONDED.
With regard to a
joint hearing, Mayor Piercy believed it could be justified and could be done in
compliance with their city policies and code.
Jerome commented
that considering the legal risks involved with both options, she recommended
the approach they had started tonight.
Bettman thought it
would be easier to have a hearing on the record that was in front of the
planning commission. She thought they
would be looking at the criteria as it applies to the Metro Plan amendment.
Ortiz asked for
clarification as to what they were going to be voting on.
Kelly said his
motion on the reading of the Eugene Code says the only matter that the Eugene
City Council will decide on is based on the record so they should hold a
hearing based on the record.
Pape thought there
could be information that was only relevant to the zoning change and could be
prejudicial to the plan amendment and Goal 5.
He asked what would happen if LUBA or an appeal body find they acted on
those improperly.
Jerome didn’t think
they would run the risk. She commented
that the court trusts the city council to sort out the evidence and disregard
what doesn’t relate to the criteria in their decision.
Green asked what the
previous vote did that the city council took.
Mayor Piercy said it
was in opposition to the motion that was made by Bettman. She noted this was a different motion that
is before the council.
VOTE; 4-5 (Pape, Piercy, Pryor, Poling and
Solomon Dissenting) MOTION FAILED.
Mayor Piercy took
their counsel’s recommendation on this and she voted in opposition.
Due to the late
hour, Howe suggested they get the date set for the next meeting.
Kelly asked Cornacchia
if he could give his full presentation in 40 minutes.
Cornacchia stated he
was told that he would be given an hour.
He asked if they could start the hearing with everyone having read all
of the record. He said they could start
at 7:00 p.m. at the next meeting with the process they set out. He preferred
doing that. He wanted to be heard with
the opponents at the same time. He thought there would be more value to it.
There was consensus
to have a continuation of the public hearing to December 12, 2006, at 5:30 p.m.
MOTION: to continue the hearing on Ordinance No.
PA 1238 and keeping the record open to December 12, 2006 at 5:30 p.m. for
the Board of County Commissioners.
Sorenson MOVED,
Green SECONDED.
VOTE 5-0.
MOTION: to continue the hearing to December 12,
2006, at 5:30 p.m., keeping the record open for the Eugene City Council.
Bettman MOVED,
Solomon SECONDED.
VOTE: 8-0.
MOTION: to approve a Second Reading and Setting a
Third Reading and Deliberation on Ordinance No. PA 1238 and keeping the
record open to December 12, 2006 at 5:30 p.m.
Dwyer MOVED,
Morrison SECONDED.
VOTE: 5-0.
14. COMMISSIONERS'
ANNOUNCEMENTS
None.
15. CORRESPONDENCE
TO THE BOARD
None.
16. OTHER
BUSINESS
None.
There being no
further business, Commissioner Dwyer adjourned the meeting of the Lane County
Board of Commissioners at 9:15 p.m.
Mayor Piercy adjourned the meeting of the Eugene City Council at 9:15
p.m.
Melissa Zimmer
Recording Secretary